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Benjamin K. Olson quoted in Dodd Frank Update article, “Will the Supreme Court hear PHH v. CFPB?”

Dodd Frank Update

Benjamin K. Olson

Benjamin K. Olson was quoted on February 9, 2018 in a Dodd Frank Update article, “Will the Supreme Court hear PHH v. CFPB?” which discussed the unanimous decision by the U.S. Court of Appeals in favor of the CFPB’s constitutionality and the possibility of an appeal. The article stated, “Looming behind the U.S. Court of Appeals’ decision in favor of the CFPB constitutionally and against former director Richard Cordray’s interpretation of the RESPA is the possibility that the ruling could be appealed to the Supreme Court.”

Olson believes PHH will seek an appeal in regard to the bureau’s constitutionality: “The Supreme Court could say the bureau is unconstitutional and Congress needs to start over with a new agency; they could say it’s unconstitutional but the court can fix it; or they could uphold the ruling that the bureau is constitutional. If the Supreme Court agrees to hear the appeal, we essentially start all over again in terms of briefing and oral argument. We’d be looking at another year at least. If it denies the appeal, we would know much sooner.”

He added, if the appeal is denied, the Supreme Court would push PHH to put this matter to rest, but another company could still try to force the issue. Olson stated, “Basically, any institution that is the subject of a CFPB investigation or is otherwise harmed by the CFPB’s actions could assert that the bureau lacks the authority to take that action because it is unconstitutional. While that issue has been decided in the District of Columbia, the PHH decision is not controlling in the rest of the country so a court could, in theory, come out differently. Unless PHH appeals to the Supreme Court and the court agrees to hear the case, however, the odds would be stacked against anyone asserting unconstitutionality because the PHH decision will be highly persuasive to other courts. Therefore, the point may be academic because no one will bother to raise the argument.”

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